Last week, TechFreedom filed reply comments in response to the FCC’s request to refresh the record on its orbital debris mitigation rules. We emphasize that the recent Supreme Court ruling in Loper Bright will have an impact even in outer space.
“FCC-imposed orbital debris rules probably won’t survive the end of Chevron deference,” said James E. Dunstan, TechFreedom’s Senior Counsel. “A generalized ‘public interest’ standard Congress gave the FCC in 1934—long before the beginning of the space age—won’t cut it with the courts after Loper Bright. The Commission’s claims of statutory authority to regulate outer space activities must fail even under Skidmore, the older cousin of Chevron.”
“Comments in this proceeding demonstrate that NASA is the expert agency on orbital debris, not the FCC,” Dunstan continued. “Under Skidmore Deference, the FCC will have to demonstrate to a reviewing court that it is the expert agency best equipped to define its statutory mandate from Congress. In our Comments, we referenced numerous other executive branch directives that make clear that other agencies have been designated as “lead” on space matters, and the FCC’s role, at best, is “supporting” those expert agencies in crafting technical rules for space operations, including minimizing orbital debris.”
“Get the standards wrong, and bad things will happen,” Dunstan warned. “Ultimately, most experts agree that orbital debris mitigation will get us only so far, and that we must develop technologies for remediation. However, applying strict mitigation rules to space operations may hamper, or possibly prohibit, the development and deployment of the technologies that can save Earth orbits from the clutter of space junk.”
“Congress must step in to pass a National Space Act,” Dunstan concluded. “Only Congress can correct the ‘gaps, overlaps, and stovepipes’ that have emerged in space regulation as agencies have moved to regulate outer space activities without clear statutory authority.”
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Find these reply comments on our website, and share them on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at media@techfreedom.org. Read our related work, including:
- Our original comments in this proceeding, (Jun. 27, 2024)
- Our comments to NASA on their Lunar Non-Interference Questionnaire, (Jun. 7, 2024)
- Our comments to the FCC on In-Space Servicing, Assembly, and Manufacturing (ISAM) (Apr. 29, 2024)
- Our comments to the FCC in support of a call to revisit rules for the 1.6GHz (“big LEO”) space band (Apr. 25, 2024)
- Our reply comments on the FCC’s satellite streamlining proceeding (Feb. 6, 2024)
- Our comments to the FAA and DOT on mitigation methods for the creation of orbital debris (Dec. 22, 2023)
- Do We Still Have the Right Stuff?, City Journal (Dec. 2023)
- SpaceX Makes Progress on Second Test of Starship, Reason (Nov. 18, 2023)
- SpaceX, DOJ, INA and ITAR — Acronyms (and Common Sense) Run Amok, DC Journal (Sep. 25, 2023)
- Tech Policy Podcast #349: The State of Space Exploration (July 25, 2023)
- Regulating the space economy is vital for America’s continued global leadership, Washington Examiner (July 15, 2023)
- Our written testimony before the House Committee on Science, Space, and Technology on U.S. leadership in commercial space (July 13, 2023)
- Tech Policy Podcast #348: The State of Space Regulation (July 11, 2023)
- Regulating Outer Space: Of Gaps, Overlaps, and Stovepipes, Center for Growth and Opportunity (July 10, 2023)
- Our comments to NASA on the “Moon to Mars Objectives” (June 3, 2022)
- Our comments to the OSTP on their orbital debris strategic plan (Dec. 31, 2021)
About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.